Orphan Works

2010-11 Update from Victor Perlman, ASMP Legal Counsel:

No orphan works legislation has been introduced this year. We continue to be actively involved in discussions regarding orphan works in Washington. The answers to the questions of what will happen and when it will happen depend, to a great degree, on whom we ask.

Legislative staff, the people in DC who do much of the work behind getting legislation written, introduced and modified, tell us that orphan works legislation will be introduced in this Congress, and most likely this year. As of now, most people involved in the process expect the new legislation, if and when it is introduced, to look a lot like the legislation that was pending when the last Congress expired. Right now, it still appears that the House bill and the Senate bill will not contain identical language.

When we talk to the Senators and Representatives, the view seems to be slightly different from staff's. As might be expected, they have a somewhat broader perspective, and they point to the large number of critical issues facing Congress that take priority over any orphan works legislation. In addition, patent reform legislation and a bill to protect fashion design have been introduced. Both of these bills will be controversial and time-consuming for staff and legislators to deal with. The impression that we get from the legislators, themselves, is that orphan works legislation is likely to be introduced in this Congress, but probably later than sooner.

As always, we will continue to keep you posted whenever there are any developments worth reporting.

What are “Orphan Works”?

As described in a 2005 report that the Copyright Office prepared for Congress, an "orphan work" is a work (such as an image) that is protected by copyright but whose copyright owner cannot be identified and located. It is clear that such a situation harms both creators and users. However, the remedy that was proposed to the 2006 Congress was needlessly unfair to creators, leading ASMP and many other groups to seek changes when the bill was introduced.

ASMP lobbied the issue all year long, presenting our case to Congressional staffers, testifying before the House and Senate committees and, at one point, asking our members to fax letters to their elected representatives. ASMP also helped form a coalition of creator associations (including overseas groups) to press for amendments to the House and Senate bills.

The 2006 bills died in committee. But even then, it was clear that the issue would be raised anew in the next Congress. The forces in American culture that want easier access to copyrighted material have not been stopped, merely delayed.